Legal Battle Over School Vouchers Returns to Maine

School choice activists have launched a fresh legal challenge to a
Maine program that provides public funding for students to attend
secular but not religious private schools. The case is the first of
what observers say could become a string of state-level lawsuits
spurred by the U.S. Supreme Court's decision upholding the Cleveland
voucher program.

The Institute for Justice, the Washington-based legal-advocacy group
that helped defend the Cleveland program, filed suit Sept. 18 in the
Cumberland County Superior Court in Portland, Maine, on behalf of six
families from three towns in the state. In Maine, school districts
provide tuition for students to attend private or out-of-district
public schools if their home districts do not have enough schools to
serve them. Some 18,000 Maine students, the vast majority of them in
high school, take part in the program, referred to as "tuitioning."

In 1981, the legislature enacted a law that barred Maine districts
from paying for students to attend religious schools. Lawmakers acted
after an opinion from the state attorney general, who said including
religious schools in the program would violate the U.S. Constitution's
ban on a government establishment of religion.

The Institute for Justice argues that denying Maine parents the
right to select religious schools for their children under the
tuitioning policy amounts to religious discrimination. The organization
brought a similar suit in 1997, but the Maine Supreme Court upheld the
law. The institute asked the U.S. Supreme Court to take the case. The
request was denied in 1999.

"For us, this is basically unfinished business," said Richard Komer,
a senior lawyer for the institute and the lead counsel in both the 1997
case and the current suit. "They have drawn a line on the basis of
religion, and they did it for one reason and one reason only: They
thought they had to. The Cleveland case proves they were wrong about
that."

Not Unexpected

In a June 27 ruling that has buoyed school choice proponents
nationwide, the Supreme Court upheld a state-run choice program that
provides vouchers worth up to $2,250 each to Cleveland students to
attend religious or secular private schools. Ohio officials expect more
than 5,500 students, most from low-income families, to participate in
the program this school year.

Thirty-eight states, including Maine, have constitutions that are
seen as prohibiting public funds from going to religious schools, and
school choice activists are hoping to overturn those bans in court.

In Florida, the Institute for Justice is helping the state defend a
school choice program that allows students from low- performing schools
to use vouchers to attend religious as well as secular private schools.
On Aug. 5, a state circuit court judge ruled that the program violates
a clause in the state constitution that bars religious institutions,
including schools, from receiving public money. The state has appealed
that ruling, and the judge has allowed the voucher program to continue
until the case is resolved. ("Florida Sees Surge in Use of
Vouchers," Sept. 4, 2002.)

Meanwhile, Mr. Komer of the institute said his organization would
take legal action in Vermont, which has a tuitioning program similar to
Maine's, within the next two months.

J. Duke Albanese, Maine's commissioner of education, said last week
that he had consulted with state Attorney General G. Steven Rowe after
the decision in the Cleveland case and was told Maine's choice program
would withstand legal scrutiny.

Mr. Albanese said the issue in the Zelman case was whether a
state may allow vouchers to be used at religious schools in some
situations, and not whether a state would be required to pay for
education in religious schools.

"The questions in the cases are very different," Mr. Albanese said.
"There is significant choice in Maine already."

Vol. 22, Issue 4, Page 17

Published in Print: September 25, 2002, as Legal Battle Over School Vouchers Returns to Maine

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